Rendering criminal justice globally

Print edition : March 12, 2004

Global Justice or Global Revenge?: International criminal justice at the Crossroads, by Hans Kochler; Springer Wien, New York, 2003; pages 448.

PUBLIC opinion in India normally asserts itself whenever misguided elements attempt to politicise any of our hallowed institutions. This is perhaps the core strength of our democracy. It is especially true at times when there is a feeling that the executive is trying to browbeat or in any way pressurise one of them into doing something that is even suggestive of a lack of ethics or unfairness. Fortunately, the founding fathers have given us the sinews in the form of the Constitution of India to make realistic our resolve to keep politics out of at least some institutions. The judiciary figures prominently among them.

Barring an occasional suspicion that the executive has brought to bear subtle influence in matters such as appointments, overall, our higher judiciary has a fair record for political neutrality and fearlessness. Not surprisingly, therefore, the average Indian expects similarly high standards of objectivity and rectitude on issues governing organisation and delivery of justice at the international level. Unfortunately, what we have seen around the globe, especially in the West's response to events since the Second World War, and more recently after 9/11, does not inspire us. For example, the experience related to our efforts to bring back Indian terrorists who have sought refuge abroad has been far from encouraging. This is in spite of an international consensus that claims of immunity on the basis of sovereignty and territorial jurisdiction are to be spurned while battling against common crime and terrorism. The same holds good for individuals guilty of crimes against humanity, such as genocide.

For quite some, unsatisfactory ad hoc arrangements in the form of special tribunals have been the only device to bring to book those guilty of genocide or war crimes. The Tokyo and Nuremberg tribunals in the post-Second World War period represent this shoddy attempt to render justice to the victims. By no means could the tribunals be considered international in character. They were, at best, regional bodies intended to dispense "unilateral justice". More recent examples are the Yugoslavia and Rwanda tribunals created by the United Nations Security Council. The politics that dictated the formation of these bodies, however justified it may be, has robbed them of credibility in the eyes of non-partisan nations. Both the tribunals are viewed as creations to promote the interests of victors rather than the outcome of a genuine desire by neutral observers to punish the guilty. It is in this context that the coming into being of the International Criminal Court (ICC) appears to be a positive development. I must quickly add that we cannot be ecstatic about this because the ICC has had too many teething troubles, which have already raised serious misgivings over its ultimate effectiveness. The decision of a superpower such as the United States to keep away from the court, is in particular a blow to all those who want the ICC to blossom into a vibrant body that could be spurred into action whenever atrocities are committed on innocent citizens. This is disappointing if one takes note of the fact that almost all NATO (North Atlantic Treaty Organisation) allies of the U.S. have endorsed the ICC as set out by the Rome Treaty.

The ICC is the outcome of many years of international deliberations since the U.N. General Assembly adopted a Convention on the Prevention and Punishment of the Crime of Genocide in December 1948. The resolution specifically directed the International Law Commission (ILC) to study the "desirability" and "possibility" of establishing an international judicial body. The progress was slow and halting for a variety of reasons. The exercise received a fillip with the General Assembly direction to the ILC in 1989 to resume the work that had remained suspended for years. The ILC draft of 1994 went through two committees before being accepted by the General Assembly. It was deliberated on for several weeks by an international conference in Rome in July 1998. Initially, as many as 120 countries voted to adopt the treaty. Seven, including the U.S. and China, voted against it, and 21 abstained. By the end of 2000, 139 countries had signed it. Interestingly, President Clinton signed it on December 31, 2000, the last day on which he could do so before handing over reins to his successor. However, on May 6, 2002, the U.S. notified the Security Council (the repository of the Rome Treaty) that it did not intend to become a party and that it was not bound by Clinton's assent. Notwithstanding this volte face by the superpower, since many more than the required 60 countries had ratified the treaty by the end of June 2002, the ICC's jurisdiction commenced on July 1, 2002, with The Hague as its headquarters. The ICC's governing body, the Assembly of States Parties, elected the court's first 18 judges (representing diverse regions and comprising seven women) in February 2003. They assumed office on March 11, 2003. In April last, the Assembly also elected Luis Moreno Ocampo of Argentina as the ICC's Chief Prosecutor.

PROF. HANS KOCHLER was a U.N-appointed international observer at the famous Lockerbie trial that heard the charges against two Libyan nationals accused of planting a bomb in the Pan Am flight 103; 270 persons were killed when the bomb went off on December 21,1988. This was an outrageous act of terrorism. Had it gone unpunished, it would have been a serious blot on the civilised world. But then, the issue of how to bring the two offenders to trial got bogged down in crass political and inter-state differences between the United Kingdom, the U.S., and Libya. The dispute as to who should try the case and where, proved extremely contentious. It was ultimately resolved on the basis of a Security Council resolution and in the form of a Scottish Court in the Netherlands. This was a unique compromise that raised several delicate issues of international law and concerns over the human rights of the arraigned Libyan nationals. (Of the two who stood trial, one was ultimately convicted.)

The Observer's Report of Prof. Kochler (reproduced at the end of the book) is a strong indictment of the procedure adopted at the Lockerbie trial. The long phase of detention of the two Libyans between their arrival in the Netherlands and the actual commencement of the trial, the unlisted and, therefore, unauthorised presence of two prosecutors from the U.S. Department of Justice and their informal supervision of the work of the trial prosecutors, and the deliberate withholding of relevant information from the panel of judges were factors that marred the fairness of the whole exercise and presented starkly the lack of a due process of law. Prof. Kochler's concluding remarks are significant: "Regrettably, through the conduct of the Court, disservice has been done to the important cause of international criminal justice. The goals of criminal justice on an international level cannot be advanced in a context of power politics and in the absence of an elaborate division of powers." Strong words indeed, but these make the Professor ponder over the problems that the present ICC is likely to face if due care to maintain fairness and keep power politics away is not taken. He is worried over the U.S.' attitude towards the ICC and cannot possibly manage greater eloquence in conveying his anger.

WHY did the U.S. go back on the clear undertaking given by Clinton through his act of signing the treaty days before he laid down office? Its main concern is over what it calls a lack of 100 per cent protection to its GIs and Commanders stationed in various parts of the globe. It also fears that the ICC is free to decide for itself what "disproportionate" use of force is. Perhaps its most serious apprehension is that the ICC has independent prosecutors with too much power in their hands, and they may start investigations on their own with the approval merely of the ICC. The U.S. has also demanded that the `probationary period', that is, the period for which there can be no amendment to the ICC Treaty, be extended from the present seven years to 10 years. Surprisingly, these reservations have cast aside summarily the fact that the ICC Treaty protects all bilateral agreements exempting U.S. troops stationed abroad from the processes of local criminal justice systems. Interestingly, the U.S. paranoia is reflected in the U.S. Congress' action (2002) in passing the American Service Members' Protection Act (ASPA), which lays down the relationship with the ICC. The Act prohibits any U.S. military assistance to most states that have ratified the ICC Treaty, except of course with the approval of the U.S. President. Also, the U.S. will not take part in any peace-keeping operations anywhere however merited it might be, unless the President certifies to Congress that U.S. servicemen are protected from the jurisdiction of the ICC. Significantly, the U.S., since the coming into being of the ICC, has signed bilateral agreements with more than 15 countries (including India) reaffirming its resolve to bring to justice those guilty of genocide, crimes against humanity or war crimes. This was one way of conveying to the rest of the world its determination not to cooperate with the ICC. In doing so, it has ignored assessments such as those of Ruth Wedgewood ( "Fiddling in Rome", Foreign Affairs, November/December 1998) that the ICC was meant to "... address the horrors of contemporary civil war, not cut down America's pre-eminence in the post-cold war period".

Kochler is quite conscious of the flaws in the concept of an international criminal court, especially in the face of a unipolar world. He is not oblivious of the need for the total separation of the judiciary from the executive, a generally accepted but an elusive feature of most modern polities. The clinical appointment of judges and prosecutors - a subject on which reams can be written on India's experience alone - who do not look up to the executive for any of their needs cannot be overemphasised. This is however an area where one can easily be accused of being dreamy. No doubt, the ICC Treaty does not give special privileges to Permanent Members of the Security Council in the matter of the appointment of ICC judges. Nevertheless, these five members can effortlessly stall or defer proceedings through the device of the Security Council, a collective that has already permitted many flagrant abuses for its own benefit. The saving grace is that the Rome Statute allows only a collective deferral. Where only one or more members of the Security Council seek a deferral, the ICC's Prosecutor can get any permanent member who supports the prosecution to exercise his veto against such deferral.

We know that if judges are to display independence, they need assurance of physical protection. Commenting on this, Kochler says: "The degree of `judicial security' and the safety of the members of the judiciary are not merely problems of `banana republics' but of Western democracies as well." Luckily, India has not had many questionable happenings on this front. But countries such as Spain, Italy and Columbia have had more than their share of problems with regard to judicial security. The ICC could face a predicament in this regard sometime in the future.

There seems to be no end to the exercise of picking holes in the Rome Treaty. The international community would do well to move away from such wasteful activity. It should remember that the ICC is an extraordinary body that is without question required in a strife-torn modern world. Notwithstanding its many shortcomings, as Kochler says, we must concede that the ICC is a definite improvement over the highly politicised ad hoc tribunals appointed by the U.N. from time to time. How it will function in a unipolar world, where one country can dictate terms to all the others, is undeniably tricky and debatable. For instance, very recently, the invasion of Iraq raised serious questions of propriety. Highly persuasive voices in different parts of the globe on this unilateral action by the U.S. were ignored if not totally silenced. We cannot but agree with Kochler when he says: "The new wars are fought in the name of `humanity'; armed confrontations are put in the framework of `good versus evil'; self-righteousness replaces legal scrutiny. The underlying normative concepts... are defined by the hegemonial power that sets the rules of the game and challenges the supremacy of the U.N." The action in Iraq explains the U.S.' perception of the ICC. This should not be allowed to demoralise those who conceived the ICC.

What we have on hand is a bold experiment that will be watched with great interest everywhere. If it has to succeed even modestly, member nations will have to display objectivity, courage and maturity. On the contrary, misguided endorsement of the U.S. intransigence could be ruinous and utterly dangerous to nations whose resources are limited and who are weighed down by the compulsions of geopolitics. They need to take Kochler seriously. Dissecting the ICC model with great dexterity, the Austrian professor successfully promotes interest in a subject that is of the utmost relevance. I would like to see many Indian scholars emulating Prof. Kochler whose work unmistakably bears the stamp of scholarship and clarity of thinking.

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